Exercising the Mighty Pen and Phone

March 10, 2014

Has President Obama become drunk with power in an attempt to avoid lame duck status and promote the Democratic Party for the upcoming elections? He announced to the press in Januarythat “I've got a pen, and I've got a phone,” remarked glibly in February that “I can do whatever I want” an hour after he took controversial executive actionon Obamacare, and is promoting a videothat celebrates the executive orders of his “Year of Action” on his official website.

“America doesn’t stand still and neither will I,” says Obama in the videohighlighting his 2014 State of the Union, a clear campaign rallying cry. “So wherever and whenever I can take steps without legislation to expand opportunities for more American families, that’s what I’ll do.” For the conservative-minded, who often disagree with the President’s more progressive policies and promise of societal hope and change, this could be seen more as a threat rather than the extension of a helping hand.

Tom Mullen, writing for the liberal Huffington Post, explained the President’s seemingly power-hungry belligerence in early February: “What most Americans are hearing is, ‘I’m going to solve these problems myself, whether I have the legal or constitutional power to do so or not.’”

“Now, he not only has continued and expanded Bush's real abuses, but has taken to flouting the Constitution rhetorically to score cheap political points,” remarked Mullen. “Senator Obama, where have you gone?” he laments.

Then-Senator Obama stated in 2008 on the campaign trail that “The biggest problems that we're facing right now have to do with George Bush trying to bring more and more power into the Executive Branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America,” according to Fox News. Evidently, that statement had an expiration date as well.

White House Press Secretary Jay Carney tried to put President Obama’s earlier comments in perspective, saying, “There is no question that this President has been judicious in his use of executive action, executive orders, and I think those numbers thus far have come in below what President George W. Bush and President Bill Clinton did.” Quantity doesn’t really matter for executive orders and actions; quality does. Carney also explained that Obama’s remarks were limited to the War on Terror, according to Fox News.

The Heritage Foundation has listed President Obama’s “Top 10 Abusive Executive Actions,” which include

· “amending Obamacare’s employer mandate,”

· “waiving the mandatory work requirement under the 1996 comprehensive welfare reform law,”

· “deciding not to defend the constitutionality of the federal definition of marriage in court,”

· “imposing the DREAM Act by executive fiat,” and

· “refusing to enforce federal drug laws in states that have legalized marijuana.”

The President has “unilaterally delayed parts of” Obamacare “29 times,” reported Fox News on February 15. This has since gone skyward and will likely continue to do so: The administration continues to use executive action to salve the wounds brought about by failures in the implementation of, or structural defects in, Obamacare rather than seeking legislative remedy in a fractured Congress where the House seeks full repeal.

The Associated Pressreported on February 28 that some citizens who attempted to sign up for Obamacare through state exchanges, but could not do so due to technical difficulties, may now receive federal tax creditsfor the private insurance they purchased instead—all courtesy of Obama’s Health and Human Services Department. “Those who stand to benefit the most are Democratic governors who plunged ahead and ran into problems,” reports the AP. In other words, this is another politically motivated run-around on Congress to benefit Obama’s political comrades.

“Along with a delay in a key mandate that medium to large companies provide coverage or face fines, it's another example of the administration trying to find flexibility to smooth out rough patches in the law's implementation,” the AP quixotically wrote.

Of course, as Politico remarked last month, this is a deliberate strategy to avoid placing Obamacare back into the “national spotlight”—as if the issue wasn’t there already. “To get around that, some Democrats say the focus, for now, should be on finding a package of measures that the White House can quickly implement—and go around Congress—a tactic Obama vowed to do repeatedly during his State of the Union address, rather than risk a bitter floor fight in which the outcome is far from assured,” reported Politico.

Some in the mainstream media have, in recent months, essentially told the American people to look the other way, that President Obama’s rhetoric on this topic is unimportant, that his actions were either small or advancing the causes of the future, and that he is following historical precedent. Consider NPR’sJanuary article on the subject: “Obama has actually issued fewer executive orders than his recent predecessors.” And, in an opinion piecefor The Washington Post, Portland State University Professor Phillip J. Cooper writes, “In presidential Ping-Pong, the next player can always change the game.”

But doesn’t the presidential Ping-Pong hurt the U.S. Constitution and rule of law in the meantime?

“We are now at the constitutional tipping point for our system,” maintained George Washington University Law Professor Jonathan Turley, one of three constitutional scholars invited to testify at a February 26 hearing looking into the President’s constitutional duty to faithfully executethe laws of the land.

“To be clear, I do not view President Obama as a dictator, but I do view him as a danger in his aggregation of executive power,” he said. Professor Turley asserted that the President’s power needs to be checked before he leaves office, and said that while he disagreed with President George W. Bush’s abuses of power, President Obama has accelerated this process.

“Separation of powers was designed as a protection of liberty,” said Professor Turley.

Law Professor Elizabeth Price Foley of Florida International University had another term for Obama’s actions: benevolence. Or, rather, “benevolent suspensions of the law.” Because these executive actions—which carve out special treatment for entire populations under the law (or in the case of the Affordable Care Act, specific types of businesses)—can’t be proven to “hurt” anyone, there is no legal standing to bring a lawsuit against them, she said. “In fact, if the constitutionality of benevolent suspensions of law is ever going to be resolved, it must be resolved through litigation by Congress against the President,” she asserted. Whether Congress could gain standing for such a lawsuit is a matter of contention. She suggested a majority of the House engage in such a lawsuit to lend it credence.

A former Obama administrationDepartment of Justice official maintained that Obama was using his discretionary powers appropriately. “The administration is not claiming any authority to suspend, nullify, dispense with, any law,” testified Duke Law Professor Christopher Schroeder. “Even assuming that it is possible to see a resemblance between the administrative actions and such labels, the proper approach to analyzing the actions must begin by taking the administration at its word, because if they are defensible as exercises of discretion granted by law, their resemblance to these other things is immaterial” (emphasis added). (Pay no attention to the man behind the curtain, in effect.) Schroeder later defensively said that he wasn’t judging the merits of Obama’s executive actions, just how to interpret them.

Yet despite Obama’s rhetoric that he will use his pen to enact executive orders and actions to change America for the better absent Congress, his press secretary recently defended the rule of law and execution of Congressional intent on immigration reform: “As the president has made clear going to your question, the job of the executive branch is to carry out the laws that are passed by Congress,” Carney said the day after the hearing, according to The Blaze. He later added, “The only permanent solution is a legislative one that will provide a broad-based path to earned citizenship.”

We will have to wait and see what type of executive action the President might take if his attempts to achieve an unlikely Congressional compromise on immigration reform utterly fail. Clearly, the administration is sending mixed messages on Obama’s willingness to go it alone.

“So I'm proud that the President took executive action, because he can't allow America's future to be held hostage by a Congress that won't do anything,” remarked Rahm Emanuelrecently. This is, of course, a false dichotomy: Professor Turley condemned Congressional inaction as “feckless” and “self-loathing,”but to be frank, a considerable number of Members agree with the President’s agenda despite his continuing consolidation of power. Gridlock is supposed to be the institutional friend of liberty, not its enemy.

Republican House Majority Leader Eric Cantor (VA) will have lawmakers in the House vote on “legislation aimed at curbing what the GOP views as an abuse of power” by the President during the week of March 10, according to the Washington Examiner. Such legislation is largely symbolic if it has no chance of passing the Senate. For now, there seems to be little legislative check on Obama’s mighty pen.